Bugh v. Mitchell

• Decision Date: 13 May 2003
• Docket Number: No. 01-3417.,01-3417.
• Citation: 329 F.3d 496
• Parties: Richard BUGH, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

329 F.3d 496

Richard BUGH, Petitioner-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellee.

No. 01-3417.

United States Court of Appeals, Sixth Circuit.

Argued February 5, 2003.

Decided and Filed May 13, 2003.

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David H. Bodiker (briefed), Thomas R. Wetterer, Jr., Theresa G. Haire (argued), Christa M. Hohmann (briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, for Petitioner-Appellant.

M. Scott Criss (argued and briefed), Office of Attorney General, Corrections Litigation Section, Columbus, OH, for Respondent-Appellee.

Before: SILER, DAUGHTREY and COLE, Circuit Judges.

OPINION

COLE, Circuit Judge.

In 1989, Petitioner Robert Bugh was convicted of rape in Carroll County, Ohio. In 1996, Bugh filed a petition for a writ of habeas corpus, alleging that the trial court's admission of hearsay evidence violated his confrontation rights; that the admission of prior bad acts evidence violated his due process right to a fair trial; and that his trial counsel provided ineffective assistance. The district court ultimately denied the petition, and Bugh now appeals. For the reasons stated herein, we AFFIRM the decision of the district court.

I. BACKGROUND

In early January 1989, Bugh's four-year-old daughter, Robin, told her mother, Carolyn, that Bugh had sexually molested her. Bugh was indicted and tried before a jury on November 28 and 29, 1989 on one count of rape, in violation of Ohio Revised Code § 2907.02(A)(1)(b). He was convicted and sentenced to a term of imprisonment of not less than ten, nor more than twenty-five, years. Bugh filed an appeal at the state level, raising five assignments of error, three of which are currently at issue in this appeal. The Seventh Appellate District of Ohio affirmed Bugh's conviction and sentence on March 14, 1991. See State v. Bugh, Carroll App. No. 594, 1991 WL 38013 (Mar. 14, 1991) (unreported). Thereafter, Bugh sought discretionary review in both the Ohio Supreme Court and the United States Supreme Court. Both requests were denied. See Bugh v. Ohio, 502 U.S. 1112, 112 S.Ct. 1218, 117 L.Ed.2d 455 (1992); State v. Bugh, 62 Ohio St.3d 1422, 577 N.E.2d 1105 (1991).

On October 29, 1996, Bugh filed a habeas petition in the United States District Court for the Northern District of Ohio, raising three grounds for relief. First, Bugh alleged that the admission of the hearsay statements of Robin through four adult witnesses violated his rights under the Confrontation Clause. Second, Bugh alleged that the admission of testimony concerning prior acts of molestation allegedly committed by Bugh denied him a fair trial in violation of the Due Process Clause of the Fourteenth Amendment. The third ground for habeas relief was the alleged denial of effective assistance of counsel at trial in violation of the Sixth Amendment. The district court assigned the case to a magistrate judge, who, on February 4, 1999, recommended the denial of Bugh's petition. Bugh filed objections to the magistrate judge's report. On August 4, 1999, the district court heard oral argument on the claims involving the hearsay testimony and other acts evidence.

On November 22, 1999, the district court issued an Opinion and Order, denying Bugh habeas relief on the claims concerning the hearsay testimony and the admission of prior bad acts evidence. The district court also rejected most of Bugh's arguments concerning the ineffective assistance of counsel claim, but ordered an evidentiary hearing to determine whether trial counsel had strategic reasons for failing to obtain an independent mental health examination of Robin. Following an evidentiary hearing on December 15, 2000, Magistrate Judge George Limbert issued a report in which he recommended the denial of Bugh's ineffective assistance of counsel claim. On March 15, 2001, the district court issued its Opinion and Order, adopting Magistrate Judge Limbert's report and recommendation.

The district court issued a certificate of appealability as to three issues: "whether [Bugh's] federal constitutional rights were violated by the introduction of other acts testimony, by the introduction of hearsay testimony, or by the failure of his counsel to move for an independent [psychological] examination of the victim." On October 12, 2001, this Court denied Bugh's application for a partial certificate of appealability as to the remaining issues.

II. DISCUSSION

A. Standard of Review

In an appeal of a habeas proceeding, we review the legal conclusions of the district court de novo and its factual findings for clear error. Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir.2002); Miller v. Francis, 269 F.3d 609, 613 (6th Cir.2001). "When the district court relies on a transcript from the petitioner's state trial and makes no independent determinations of fact, we review the district court's factual findings de novo, as well." Withrow, 288 F.3d at 850.

B. Habeas Standards and the Antiterrorism and Effective Death Penalty Act

Because Bugh's habeas petition was filed on October 23, 1996, it is subject to the provisions of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), which became effective on April 24, 1996. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir.1997). Under AEDPA,

an application for writ of habeas corpus on behalf of a person who is incarcerated pursuant to a state conviction cannot be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Harris v. Stovall, 212 F.3d 940, 942 (6th Cir.2000) (quoting 28 U.S.C. § 2254(d)). Findings of fact made by a state court are presumed correct and can be contravened only where the habeas petitioner shows by clear and convincing evidence that the state court's factual findings were erroneous. 28 U.S.C. § 2254(e)(1); Brumley v Wingard, 269 F.3d 629, 637 (6th Cir.2001). "This presumption of correctness also applies to the factual findings of a state appellate court based on the state trial record." Brumley, 269 F.3d at 637 (citing Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981)).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court elaborated upon the standard of review under § 2254(d), explaining that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." 529 U.S. at 413, 120 S.Ct. 1495. An "unreasonable application" of clearly established federal law occurs when "the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id.; see also Brumley, 269 F.3d at 639. We may not overturn a state court decision unless we determine that the application of Supreme Court precedent was objectively unreasonable. Brumley, 269 F.3d at 639. Furthermore, "clearly established federal law" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412, 120 S.Ct. 1495; Withrow, 288 F.3d at 850. We have recognized, however, that AEDPA does not require that the Supreme Court "must have previously decided the very case that a lower court has before it." Withrow, 288 F.3d at 850. Clearly established law "encompasses more than just bright-line rules laid down by the Court. It also clearly includes legal principles and standards enunciated in the Court's decisions." Id.

C. Right to Confront Witnesses

Bugh argues that his Sixth Amendment confrontation rights were violated when the trial court allowed four adults — Carolyn Bugh, Faith Jones, Kate Noble Offenberger, and Dr. Joan Bothner — to testify as to out-of-court statements made by Robin concerning the abuse by her father. At trial, Robin only testified that Bugh "touched her privates," which, Bugh contends, alone could not sustain a rape conviction in Ohio.

1. State Court Proceedings

Carolyn Bugh, Robin's mother and Bugh's ex-wife, was the state's first witness. Carolyn testified that she had a conversation with Robin in January 1989, in which Robin told her that her father molested her:

She told me that he asked her to touch his privates ... [a]nd uh he also asked her to suck on it and she said that she did and he said that, or she said that he put her on top of him and put his privates against hers and squiggled them around.

The trial court overruled a hearsay objection to this testimony.

Robin testified after Carolyn, followed by Jones, Dr. Bothner, and Offenberger. Jones, a counselor who met with Robin for twenty-two sessions, testified that Robin had told her of Bugh's molestation:

[W]e have an interview protocol that we use, using open ended questions and she told me that her father had touched her on her private parts and had put his private part up inside of her and at one time in the shower, he had her, he made her suck on his private part until juice came out.

The trial court overruled a hearsay objection to this testimony.¹

Dr. Bothner, who performed a physical examination of Robin in February 1989, also testified as to Robin's statements concerning her father's sexual abuse. Dr. Bothner stated that, "Robin had told me uh in her own words, and I'll just...